Gender, Sexuality and Law:
Discrimination Goes to Law School
Harper Jean Tobin
Congress’s General
Accountability Office reported last week that the U.S. military’s anti-gay “Don’t
Ask, Don’t Tell” policy has resulted in nearly 10,000 discharges since its
inception in 1993. The Pentagon spent close to $200 million training these men
and women – and that’s not counting the costs of investigations, legal
challenges, and the costlier training of over 750 specialists.
A compromise signed into law
by President Clinton – who had hoped to end military discrimination altogether
– requires the discharge of any servicemember found to have “engaged in,
attempted to engage in, or solicited another to engage in a homosexual act,” or
openly identified as gay, lesbian, bisexual or transgender.
According to American Veterans for Equal Rights (AVER),
over one million LGBT Americans have served in the Armed Forces since World War
II, despite, in their words, "being denied the very freedom they have
volunteered to defend." AVER also note that virtually all of America's
allies allow LGBT citizens to serve openly in the military, leaving the US in
the company of Iran and Libya.
The policy was once justified by fears that gays were
particularly vulnerable to blackmail, but this claim lacks force today – except
to the extent that the policy itself makes closeted servicemembers vulnerable.
Today’s justifications for “Don’t Ask, Don’t Tell” mirror those heard in the
1940s for racial segregation in the armed forces: “morale, good order and
discipline, and unit cohesion,” to quote the policy itself.
American law schools,
unsurprisingly, have had trouble with the military’s policy. The Association of
American Law Schools (AALS), to which nearly all accredited schools belong,
requires all member schools to adopt policies prohibiting discrimination on the
basis of race, color, religion, national origin, sex, age, disability, or
sexual orientation. In pursuance of this policy, most law schools have resisted
the presence of military recruiters on their campuses, since the military does
not comply with their nondiscrimination policy. Schools, and supportive faculty
and students, have emphasized that they are not anti-military, but would be
opposed to aiding or promoting any employer that openly practiced
discrimination against gays and lesbians.
The law schools’ stand
appeared to threaten the military’s need for skilled lawyers. Accordingly,
Congress in 1995 passed the first Solomon Amendment, making schools’ federal
funding dependent on allowing military recruiters. Law schools’ hands were
tied: if they stood by their principles they would jeopardize students’
financial aid and their very survival.
Accordingly, the AALS amended
its policy -- not to exempt the Armed Forces, but to excuse school’s
noncompliance in this regard. But along with this came a new requirement:
schools must take steps to “ameliorate the negative effects that granting
access to the military has on the quality of the learning environment for its
students, particularly its gay and lesbian students.” Accordingly, schools not
only posted statements to the effect that military recruiters were permitted
only under duress, but provided the minimum possible assistance. Recruiters at
some schools were made to conduct interviews outside the Career Services office
and without the assistance of staff.
The Department of Defense and
Congress took umbrage at this treatment, and have recently required that
schools treat military recruiters in a manner on par with other employers – or
face withdrawal of funding from not only the law school but the parent school
as well. Ironically, the DOD was insisting it not be discriminated against for
discriminating against LGBT servicemembers
Enter the courts. A coalition
of 28 law schools have brought suit in federal court challenging the Solomon
Amendment as an unconstitutional infringement of their First Amendment rights.
Yet more irony: their legal argument rests largely on Boy Scouts of America
v. Dale, the 2000 Supreme Court decision holding that the Boy Scouts could
not be required by a state law to allow openly gay leaders. In late November,
the Third Circuit Court of Appeals agreed with the plaintiffs and ordered an
injunction against the law, finding that:
Just as the Boy Scouts
believed that “homosexual conduct is inconsistent with the Scout Oath,” the law
schools believe that employment discrimination is inconsistent with their
commitment to justice and fairness. Just as the Boy Scouts maintained that “homosexuals
do not provide a role model consistent with the expectations of Scouting
families,” the law schools maintain that military recruiters engaging in
exclusionary hiring “do not provide a role model consistent with the
expectations of,” their students and the legal community. … And just as “Dale’s
presence in the Boy Scouts would, at the very least, force the organization to
send a message, both to youth members and the world, that the Boy Scouts
accepts homosexual conduct as a legitimate form of behavior,” the presence of
military recruiters “would, at the very least, force the law schools to send a
message,” both to students and the legal community, that the law schools “accept”
employment discrimination “as a legitimate form of behavior.”
One judge dissented, arguing
that military necessity justified any infringement, that “recruiting is an
economic activity whose expressive content is strictly secondary to its
instrumental goals,” and that “the Solomon Amendment simply does not impinge on
the right of educational institutions to determine their membership,” but “merely
requires them to allow the transient presence of recruiters.”
The parties are waiting anxiously
to see how broad an injunction is granted. While some have criticized the
litigation as unpatriotic, some students and faculty elsewhere are urging their
schools to join the suit. And just a few weeks ago, a Connecticut District
Court granted summary judgment to Yale Law School in a similar suit.
Meanwhile, military recruiting
activities continue at law school throughout the country, including Case. The
school’s posted nondiscrimination policy notes in all-capital letters, however,
that “military employment practices are inconsistent with the
non-discrimination policies of Case Western Reserve University and the Law
School.” Dean Korngold says that
the school will not act against Solomon without a binding decision in its own
jurisdiction, but stresses that this issue is of great interest to the school
and that he will continue to follow the current litigation closely.
The views of Case faculty vary
considerably. Professor Andrew Morriss ridiculed efforts to halt military
recruitment in a 2001 Wall Street Journal piece, emphasizing that
discriminating against gays and lesbians is perfectly legal. Then holding the
position of Associate Dean for Academic Affairs, Morriss wrote that he would do
“everything I can to roll out the red carpet whenever the military wants to
conduct interviews here.”
Professor Kathy Hessler, on
the other hand, insists, “We would not be having this conversation if the
military were discriminating against women or African Americans or many other
formerly disfavored groups of people. While I can appreciate the military's
interest in access to college and university campuses for recruitment, I cannot
see why their interest should trump those institutions' commitment to
non-discrimination.”
Of course, this entire
controversy would be moot if Congress eliminated anti-gay discrimination in the
military. Legislation to do just that is being introduced this week.